Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
David M'Guffock v. David Edgar
Date: 25 February 1762 Case No. No 42.
A bond contained a clause, stipulating notorial requisition before demanding payment. No requisition was made before adjudging. The adjudication found ineffectual.
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In the year 1733, John M'Kill granted an heritable bond upon his lands of Cleugh, to George M'Millan, for the sum of 4000 merks, redeemable for payment of principal and interest, and bearing this clause, ‘The said John M'Kill and his foresaids, always premonishing the said George M'Millan and his foresaids, when the said money is to be paid, sixty days before the term, by a notary before two witnesses, as esseirs; and the said George M'Millan likewise premonishing the said John M'Kill and his foresaids, in the terms abovementioned, when the said money, principal, penalty, and annualrent, are to be required.’
Adjudication was led upon this bond; but requisition against the debtor was not used previous thereto. The summons of adjudication was called in the year 1742, but decreet did not go till the year 1745.
In a question betwixt David M'Guffock assignee to M'Millan, insisting for the accumulations in the adjudication, and David Edgar, disponse of M'Kill, who had paid up the principal sum and interest; it was objected for David Edgar, That the adjudication was ineffectual, in respect no requisition was used previous to it.
It was answered for M'Guffock, The reason why the requisition was stipulated and required, is, that the debtor might not be taken unawares, but might have sixty days to prepare the money for his creditor. Now, in the present case, the debtor had full time to prepare his money, not sixty days, but three years; there being this distance of time betwixt the summons and decreet of adjudication.
The Lords assoilzied Edgar.
For M'Guffock, J. Dalryample.Alt. Crosbie.
Fol. Dic. v. 3. p. 7. Fac. Col. No 82. p. 180.
